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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 85 of 2014
BETWEEN :
VIKASHNI NANDANI PHILLIP
of 149 Sukanaivalu Road, Lautoka
PLAINTIFF
AND :
THE PERMANENT SECRETARY FOR HEALTH
FIRST DEFENDANT
AND :
THE ATTORNEY GENERAL OF FIJI
SECOND DEFENDANT
Mr. Rajendra P.S. Chaudhary for the Plaintiff
(Ms) Mary Motofaga, Principal Legal Officer, AG's Chambers, for the Defendants
Date of Hearing: - 02nd of July 2015
Date of Ruling : - 02nd of October 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff's Summons dated 09th April 2015, made pursuant to Order 24, Rule 03 of the High Court Rules, and under the inherent jurisdiction of the Court seeking the grant of the following orders;
- That the Defendants do release to the Plaintiff's Solicitors a copy of "root cause analysis report" mentioned in the letter of the Acting Medical Superintendant, Lautoka Hospital dated 28th April 2014.
- That the cost of this application be paid by the Defendants.
(2) The Summons is supported by an Affidavit sworn by the Plaintiff on 31st March 2015.
(3) The Summons is strongly resisted by the Defendants.
(4) The Defendants supported their opposition by an Affidavit sworn by Dr. Meciusela Tuicakau, Acting Permanent Secretary of Ministry of Health and Medical Services.
(5) The Plaintiff and the Defendants were heard on the Summons. They made oral submissions to Court.
(6) In addition to oral submissions, the Plaintiff filed a careful and comprehensive written submission for which I am most grateful.
(B) BACKGROUND
(1) What are the circumstances that give rise to the present application?
(2) The Plaintiff is a house wife born on 10th February 1973 and married with one child.
The first Defendant, the Acting Permanent Secretary of Ministry of Health and Medical Services, exercises control and supervision over the management of all public hospitals.
The second Defendant, the Attorney General of Fiji is sued for and on behalf of "Lautoka hospital", and its employees and the Government of Fiji.
(3) With that short introduction, let me set out the relevant facts. The Plaintiff in her Statement of Claim pleads inter alia;
Para (4) THAT on 25th October 2011 the Plaintiff was admitted to the Lautoka Hospital with labour pains at about 8.30am. The Plaintiff was pregnant and her baby's due date was 23rd October 2011. The Plaintiff was kept at the Labour ward for observation for about half an hour and then transferred to the Ante natal Ward. The Plaintiff was seen by doctors at about 9am who told the Plaintiff her pain would be monitored. The Plaintiff stated to the doctors that she wanted a Caesarean section birth. Her first child was born by a Caesarean section. The Plaintiff remained in the Ante Natal ward overnight.
(5) THAT on the morning of 26th October 2011 the Plaintiff began to have regular labour pains at intervals of approximately 10 Minutes. When the doctor came to do his ward rounds after 8am he asked the Plaintiff whether she wanted a Caesarean section delivery or vaginal delivery. The Plaintiff stated she wanted a Caesarean delivery. The doctor refused saying they would try vaginal birth and would do a Caesar if complication arose.
(6) THAT the Plaintiff's labour pains continued starting from the morning of 26th October 2011 and the Plaintiff also started vomited until about 2pm when she was transferred to the Labour ward after a CTG was done for the baby.
(7) THAT in the Labour Ward the Plaintiff's Blood Pressure was measured. It was rising. She was given an oxygen mask to breathe. The Plaintiff's husband asked the doctor on call to do a Caesarean on the Plaintiff. Both the doctor and the sister on duty refused stating that the baby would be delivered normally. The Plaintiff could not eat or drink as she suffered from symptoms of vomiting.
(8) THAT at about 9.30pm the CTG belt was attached to the Plaintiff. The doctor and the sisters went to eat leaving two student nurses in the ward. The Plaintiff was having continuous pain, throbbing pain in the head and the baby was making movements in the womb. There were no qualified nurses' around.
(9) THAT at about 9.45pm the baby moved vigorously in the womb. There was a very sharp pain and then the pains stopped. The Plaintiff called out but the student nurses could not hear her as the radio was on and there was diwali fire crackers.
(10) THE doctor, Vasitia, came at about 9.50pm and enquired of the Plaintiff as to what had happened. The Plaintiff informed the doctor that her labour pains had ceased and the baby was no longer moving. The Plaintiff was also bleeding. The doctor then started to prepare the Plaintiff for emergency Caesar and the Plaintiff was rushed to the Operation theatre.
(11) THE Plaintiff was anaesthetized half body down and operated upon. An emergency Caesarean section was done. Doctor Rani was also called and was present in the theatre. By the end of the operation the Plaintiff was conscious enough to see the needle thread going up and down as she was being stitched. At about 12.10am the Plaintiff was taken to the labour ward, was given injections and went to sleep. She was not told what had happened.
PARTICULARS OF OPERATION ON 26TH OCTOBER 2011
Emergency lower segment caesarean section for placenta abruption. Intra op it was noted she had a ruptured atonic uterus which was repaired primarily. Post operatively she was noted to have gross hematuria and tachycardic but normotensive.
(12) THAT on the morning of 27th October 2011 the Plaintiff was advised by her husband that her baby had died in the womb. Dr Rani advised the Plaintiff that she needed another operation urgently because of the internal bleeding. The Plaintiff was taken to the operation theatre at about 10am and brought out of the theatre at about 3pm.
(13) THAT on the morning of 28th October 2011 the Plaintiff was informed by Dr Rani that they had to remove the Plaintiff's uterus. The Plaintiff was transferred to the Ante Natal ward on 29th October 2011. The Plaintiff was wetting her bed with urine despite having an indwelling catheter in place. That on 15th November 2011 a cystoscopy was performed on the Plaintiff by a visiting urologist. As a result a fistula was noted between the vagina and the urinary bladder and granulation tissue. The Plaintiff was advised that the repair of the fistula could be done in January or February 2012. On 15th February 2012 the Plaintiff was advised she would be operated upon on 16th March 2012.
(18) THE Plaintiff decided to seek further treatment overseas (in Australia) as the doctors and/or the sisters, nurses of the Lautoka Hospital being the servants and/or agents of the said Hospital and the Government of the Fiji who treated the Plaintiff were and each of them was, or alternatively one or other of them was, guilty of negligence and failed to use reasonable care, skill and diligence and exercise proper judgment in and about the treatment, attendance, care and advice given to the Plaintiff as aforesaid resulting in her present condition.
PARTICULARS OF NEGLIGENCE
(i) Failing to do a Caesarean section when one was appropriate and even warranted.
(ii) Failing to heed the Plaintiff's and the Plaintiff's husband's repeated requests that the baby be delivered by a caesarean section.
(iii) Requiring the Plaintiff to remain in prolonged labour resulting in placenta abruption requiring emergency lower segment caesarean section. The prolonged labour also caused the development of a fistula and damaged the bladder.
(iv) Failing to realize that prolonged labour may cause uterine rupture as the Plaintiff's first baby was delivered by a caesarean section.
(v) Failing to carry out a caesarean section earlier at term to avoid all the complications that arose later.
(vi) Failing to exercise proper and adequate medical care expected of medical staff.
(vii) Failing to observe or to act upon to investigate properly or at all the steady and serious and obvious deterioration in the condition of the Plaintiff while in the care of each of them respectively.
(19) THAT as a result of the matters aforesaid the Plaintiff suffered loss and damage, pain and suffering loss of amenities of life and loss of earning capacity.
PARTICULARS
(i) The Plaintiff's baby was delivered by Caesarean section after it had died in the womb. A live baby would have been delivered if caesarean section was done earlier.
(ii) The prolonged labour led to placenta abruption.
(iii) The Plaintiff's uterus was ruptured requiring hysterectomy. The Plaintiff cannot bear children anymore.
(iv) The Plaintiff's bladder was damaged.
(v) The prolonged labour led to the development of vesicovaginal fistula.
(vi) The Plaintiff suffered from continuous pain and anxiety.
(vii) The Plaintiff's sexual relationship with her husband has suffered.
(4) The Plaintiff claims the following;
- (i) General Damages for pain and suffering, loss of amenities of life and loss of earning capacity.
- (ii) Damages for the loss of her uterus, damage to her bladder, the Vesicovaginal fistula and all the complications resulting from the refusal to carry out caesarean section in time.
- (iii) Aggravated Damages.
- (iv) The sum of $A$12,892.80 and F$2560.20 as per paragraph 16
- (v) Cost of future medical care.
- (vi) Interest.
(C) THE STATUS OF THE SUBSTANTIVE MATTER
- ❖ The Plaintiff and the Defendants have filed an Affidavit verifying list of Documents relating to the matters in question.
- ❖ The status of the proceedings is for the parties to proceed for inspection of documents and discoveries.
(D) THE PLAINTIFF'S APPLICATION FOR SPECIFIC DISCOVERIES
(1) The Plaintiff in her Affidavit in Support deposes;
Para (6) THAT I had written a letter of complaint to the Minister of
Health re: the treatment given to me. That sometime after January 2012 I went to the hospital for my Urology Clinic with my husband. At the Clinic Dr Taria told my husband that an investigation was carried out.
(14) I verily believe that I and my Solicitor are entitled to see the
document or report called "root cause analysis report" because;
(a) It concerns me and my treatment at Lautoka hospital following my admission on 25th October 2011.
(b) The document is relevant to the issues in the proceedings – that is, the negligence or otherwise of the treatment given to me at the hospital.
(c) The defendants have admitted that the document exists.
(d) The public interest in the administration of Justice requires that the report be disclosed and not kept secret.
(2) The Plaintiff seeks the following Orders;
- That the Defendants do release to the Plaintiff's Solicitors a copy of "root cause analysis report" mentioned in the letter of the Acting Medical Superintendant, Lautoka Hospital dated 28th April 2014.
- That the cost of this application be paid by the Defendants.
(E) THE DEFENDANT'S OPPOSITION
(1) What is the Defendant's reason opposing the production of the "root cause analysis" report?
(2) Dr. Meciusela Tuicakau, Acting Permanent Secretary of Ministry of Health and Medical Services, in his Affidavit in Opposition deposed as follows;
Para (3) THAT the Root Cause Analysis reporting fails under the
Ministry's policy on Unusual Occurrence Reporting (UOR) for the investigation of sentinel events in 2006 which was revised in 2010. This policy is in line with the Ministry's Strategic Health Plan 2011 – 2015 to "provide high quality health care delivery services by a caring and committed workforce with strategic partners, through good governance, appropriate technology and appropriate risk management, facilitating a focus on patient safety and best health status for all the citizens of Fiji". Attached is a copy of the 2006 policy and revised 2010 policy marked as "Annexure A" and "Annexure B" respectively.
(4) THAT a root cause analysis is a highly structured system
approach to incident analysis and quality improvement at an organizational level. This falls under the Ministry's Risk Management Framework which is to constantly review standard of practice to ensure the quality and care of patients is optimized and the risk to patient's visitors and staff is minimized. A root cause analysis report is a means of reducing the risks of adverse events occurring in organization by systematically assessing, reviewing and then seeking ways to prevent their occurrence at organization level only.
(5) THAT under the UOR policy, an RCA report is considered
privileged and confidential. This is integral to promoting reporting, collaboration and shared learning. Under the policy it should not be photocopied, reproduced or retained and distribution is limited in house to the applicable supervisor, MS/DMO and Risk Manager. It is not to be completed, sighted or signed by the patient, relatives or non-Ministry of Health personnel. Furthermore it is not filed or documented in the patient's medical record. The RCA report when completed is filed away at Ministry of Health headquarters.
(6) (d) That we cannot disclose the RCA report because of the following:
- It is line with the Ministry's policy on Unusual Occurrence Reporting (UOR) for the investigation of sentinel events in 2006 which was revised in 2010.
- It is a privileged and confidential report of the hospital conducted at organizational level.
- The RCA report concerning the plaintiff was conducted with the knowledge that it was confidential and privileged and would not be used in any court of law. To disclose it now would be detrimental to the Ministry.
- It is not part of the Plaintiff's medical folder.
- The Plaintiff has been given a copy of her medical folder and this is sufficient to make a determination on the negligence or otherwise of her treatment at the Lautoka hospital.
- To make an order for the release of the RCA report would be contrary to public policy and greatly prejudicial to the Ministry and its staff.
(F) THE LAW
(1) Before turning to the substantive submissions, it is convenient to indicate something of the relevant law. Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the principles in play.
(2) Provisions relating to "Specific Discoveries" are contained in Order 24, rule 7 of the High Court Rules.
Order 24, rule 7 provides;
Order for discovery of particular documents (O.24, r.7)
7.-(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not than in his possession, custody or power, when he parted with it and what has become of it.
(2) An order may be made against a party under this rule not withstanding that he may already have made or been required to make a list of documents or affidavit under rule 2 or rule 3.
(3) An application for an order under this rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters in question in the case or matter.
(3) Discovery can be sought at any stage of a proceeding even after a judgment or order in an action has been made. [see Singh v Minjesk Investment Corporation Ltd & Anor, High Court Civil Action No:- HBC 148 of 2006, Korkis v Wer & Co. (1914) LT 794.]
(4) Courts have a wide jurisdiction to order discovery and inspection.
In Singh v Minjesk (supra) Master Udit canvassed the applicable principles and case law authorities in some detail. From his analysis, what emerges clearly is that the onus initially is on the applicant to establish the following by way of affidavit evidence:
(i) Identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7 (1).
(ii) Show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7 (1)).
(iii) Establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B. Anand (Christchurch) Ltd v ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).
It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury's Laws of England – 4th Edition) page 34 cited in Singh v Minjesk
(iv) Show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the document from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7 (3)).
(G) ANALYSIS
(1) Before I pass to consideration of the substantive submissions, let me record that the Plaintiff in her written submission has done a fairly exhaustive study of judicial decisions and other authorities which she considered to be applicable.
I interpose to mention that I have given my mind to the oral submissions made by the parties as well as to the Plaintiff's written submission and the judicial authorities referred to therein.
(2) If, as I apprehend, now comes a most material and crucial fact.
I ask myself, what is the question in these proceedings?
"Vikashni" is seeking discovery of "Root Cause Analysis" report. To be more precise, the Plaintiff in this application seeks discovery of a document that plainly exists and is in possession, custody and control of the Defendants. The Plaintiff claims that the "Root Cause Analysis" report relates to the matters in question in the action.
Before determining against the Defendants, the real issue and the only issue which this Court has to consider at the outset is whether the Plaintiff has satisfied the threshold criteria in Order 24, Rule 7, of the High Court Rules.
Quite plainly that the onus initially is on the Plaintiff to establish that;
❖ the "Root Cause Analysis" report is in the physical possession, custody of the Defendants.
❖ the "Root Cause Analysis" report relates to the matter in question in the action.
In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.
In the leading authority Compagnie Financiere du Pacifique v. Peruvian Guano Co. [1883] UKLawRpKQB 95; (1882) 11 Q.B.D. 55 Brett L .J. stated of the above second requirement at p.63:
"It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in, the words 'either directly or indirectly' because, it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences."
In Singh v Minjesk (supra) Master Udit canvassed the applicable principles and case law authorities in some detail. From his analysis, what emerges clearly is that the onus initially is on the applicant to establish the following by way of affidavit evidence:
(i) Identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7 (1).
(ii) Show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7 (1)).
(iii) Establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B. Anand (Christchurch) Ltd v ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).
It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury's Laws of England – 4th Edition) page 34 cited in Singh v Minjesk
(iv) Show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the document from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7 (3)).
Addressing myself to the first requirement, Dr. Luisa Cikamatana Rauto, the Acting Medical Superintendent of the Lautoka Hospital, in her letter dated 28th April 2014, addressed to the Plaintiff's Solicitors (Annexure "D"), has admitted the existence, possession and custody of the "Root Cause Analysis" report.
For the sake of completeness the Annexure "D" is reproduced below.
"WITHOUT PREJUDICE"
28 April 2014
Messrs Chaudhary & Associates
P.O. Box 1011
Lautoka
Dear Sir
RE: VIKASHNI NANDANI PHILLIP NHN: 320208175
Yours sincerely
(signed)
Dr Luisa Cikamatana Rauto
Acting MEDICAL SUPERINTENDENT
(Emphasis Added)
Thus I venture to say beyond per-adventure that the Plaintiff has satisfied the first threshold criteria in Order 24, Rule 7.
I now turn to the second threshold criteria.
If, as I apprehend in her Statement of Claim, the Plaintiff alleges negligence against the Doctors, Sisters and Nurses of the Lautoka Hospital for failing to exercise proper and adequate medical care expected of medical staff and mainly claims damages for the loss of her uterus, damage to her bladder, the vesicovaginal fistula and all the complications resulting from the refusal to carry out caesarean. Thus to make a determination on the negligence or otherwise of her treatment at the Lautoka Hospital, the circumstances surrounding the emergency caesarean carried out on the plaintiff on 26th October 2011 is very crucial. The Acting Medical Superintendent of Lautoka Hospital, Dr. Luisa Cikamatana Rauto, in her letter dated 28th April 2014 [Annexure D] clearly explains the aim of the "root cause analysis" report as follows;
"The aim of such documents is for the hospital to understand how and why events occur and what (if anything) can be done in the future to prevent the same or similar events from occurring."
In light of the foregoing, it is clear beyond question that the "root cause analysis" report relates to the matter in question of the action.
Thus, I venture to say beyond per-adventure that the second threshold criteria has been satisfied by the Plaintiff.
(3) The Plaintiff's application for discovery of "root cause analysis report" is strongly opposed by the Acting Permanent Secretary of Ministry of Health and Medical Services on the following grounds;
- (A) The report is considered privilege and confidential.
- (B) The release of the report would be contrary to public policy and greatly prejudicial to the Ministry and its staff.
(4) Before turning to the Defendant's objections, it is convenient to indicate something of the relevant law in relation to the scope and width of the doctrine of "Crown Privilege or Public Interest Immunity".
The term "privilege" as used in Law of Evidence means a freedom from compulsion to give evidence or to discover-up material, or a right to prevent or bar information from other sources during or in connection with litigation, but on grounds extrinsic to the goals of litigation. (Paul F. Rothstein, Evidence, State and Federal Rules (1981), Page 407.)
"Peter Gillies", in "Law of Evidence in Australia", First Edition, writes at page 428;
PRIVILEGE – PUBLIC INTEREST IMMUNITY
"What was once referred to as Crown privilege is now variously referred to as "public interest privilege', "public interest immunity" and so on. Broadly, this common law doctrine is concerned with the exclusion of otherwise admissible evidence relating to the workings of government or of a private entity vested with a public function by statute, where the public interest in maintaining the confidentiality of the facts sought to be proven outweighs the public interest in having all relevant evidence adduced in court. It also applies, logically, in pre-trial discovery.
The current law on this topic derives in Australia from the decision of the High Court in Sakey v Whitlam (1978). The current English law, which is similar, derives from the decision of the House of Lords in Conway v Rimmer (1968). Both decisions decided that the statement (in whatever form)of a Minister or other relevant public official that information sought to be discovered by subpoena or other instrument, or adduced in court, should in the public interest be privileged from disclosure, was not conclusive, and that the court should be prepared except in uncommon cases to go behind this statement and consider the nature of the material in question, as for example, by reading a document sought to be kept confidential. Both differed from the earlier house of Lords decision in Duncan v. Cammell Laird (1942), which asserted that it was a rule of practice to accept the Minister's statement without further inquiry, and to protect the material from disclosure. The Duncan doctrine is of course the product of a less cynical, more trusting age. It was justified on the basis that the "public" interest in keeping secret State secrets outweighed the "private" interest of a party in having confidential public material disclosed in court. The latter interest is of course synonymous with the public interest in having all relevant evidence before the courts, as a necessary means of getting to the truth in a dispute. The Duncan rule produced the potential for abuse by the executive and the increasingly extensive organs of government – bodies which engage daily in litigation with private citizen and corporations."
I remind myself that it is a fundamental principle of any civilized legal system that the interests of justice are best served if parties to litigation are obliged to disclose and produce for the other party's inspection all documents in their possession, custody or power relating to the issues in the action.
I caution myself that it is not however an absolute principle, as exception such as legal profession privilege and public immunity demonstrate.
The touchstone by which the doctrine of Crown Privilege operate was felicitously expressed by Lord Radcliffe in the Scottish appeal "Glasglow Corporation v Central Land Board" (1956) S.C1, as follows;
"The power reserved to the Court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in reviewing the question whether a document which would be available to a party in a civil suit between parties is not to be available to the party engaged in a suit with the Crown. The interests of Government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the court would be better qualified than the minister to measure the importance of such principles in application to the particular case that is before it."
If, as I apprehend, the breadth of the cloak of secrecy accorded by a privilege is often the amalgam of statutory language and judicial gloss, and of a tension between certain branches of public policy, on the one hand, and the need of the public and the court to be informed, on the other hand. [see, "Governmental Privilege in Evidence", Report by Law Commission of India, 07th January 1983]
How would the court proceed?
The claim to public interest/policy immunity must be balanced against the public interest in the administration of Justice.
Lord Pearson in Rogers v Home Secretary (1973) AC 388 at 406P said;
"The court has to balance the detriment to the public interest on the administrative or executive side, which would result from the disclosure of the document or information, against the detriment to the public interest on the judicial side, which would result from non-disclosure of a document or information which is relevant to an issue in legal proceedings. Therefore the court, though naturally giving great weight to the opinion of the appropriate minister conveyed through the Attorney-General or his representative, must have the final responsibility of deciding whether or not the document or information is to be disclosed."
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However, the public interest has two aspects which may conflict. [Per Gibs ACJ, Sankey v Waitlam [1978] HCA 43; (1978) 21 ALR 505.]
These were described by Lord Reid in Conway v Rimmer [1968] AC at 940 as follows:
"There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done."
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be with held. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. [Per Gibs ACJ, Sankey v Waitlam [1978] HCA 43; (1978) 21 ALR 505.]
In other cases, however, as Lord Reid said in Conway v Rimmer, at 940,
"the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or the private, can be allowed to prevail over it".
(5) I now proceed to examine the Affidavit in Opposition sworn by Dr. Meciusela Tuicakau, the Acting Permanent Secretary of Ministry of Health and Medical Services, bearing aforementioned legal principles in my mind.
I am concerned here with a situation where the claim is by the State to withhold the disclosure of the "root cause analysis" report on the grounds that;
❖ The report is privilege and confidential.
❖ The disclosure of the report would be contrary to public policy and greatly prejudicial to the Ministry and its staff.
It seems to me perfectly plain that the Permanent Secretary of Ministry of Health has adopted a 'scatter gun" approach to withhold the disclosure and production of the "root cause analysis" report. He has taken multiple objections in the hope that one or more of the objections might "hit home".
Leave all that aside, it is of course an elementary principal of law that the person taking the objection to production of the document should himself have read and considered the document and formed the view that on grounds of "crown privilege" or public interest privilege or public interest immunity the document ought not to be produced, either because of its actual contents or because of class of document to which it belongs.
See; Duncan v Cammell
❖ Robinson v State of South Australia
❖ Bruce v Walderin
❖ Grosvenar Hotel, London
Applying those principles to the present case, what do we find?
The deponent, Permanent Secretary does not state that he has himself perused the "Root Cause Analysis" Report. It is obviously essential that the person asserting the claim for privilege should himself have seen the document.
The deponent Permanent Secretary does not state that he has himself examined the "Root Cause Analysis Report". It seems to me perfectly plain that the Affidavit in Opposition in this case falls far short of standard. To be more precise, how did the Permanent Secretary of Ministry of Health make up his mind that the report should not be produced on the ground of public interest, on the ground of privilege and confidential and on the ground of public policy, without reading the contents of the report??? In the result, applying the rule of law enunciated in the above judicial decisions, I completely reject the Affidavit in Opposition of the Permanent Secretary and I give it absolutely no weight whatsoever. Having said that I want to make it clear that on public policy the truth should always be accessible to the Court. The ultimate authority to determine the availability of privilege in a particular case is the judiciary and not the executive. [Conway v Rimmer [1968] UKHL 2; (1968) 1 AER 874, Sankey v Whitlam [1978] HCA 43; (1978) 21 ALR 505.
(6) Leave all that aside, and let me turn to the doctrine of confidentiality.
The Permanent Secretary says that the report is confidential.
At this point, I cannot resist in saying that I remain utterly unimpressed by the stance taken by the Permanent Secretary. I sympathies with the proposition advanced by the Permanent Secretary.
I desire to emphasize that the mere fact that the report is confidential is not enough to establish a public interest to be weighed
against the disclosure and use of relevant evidence.
The origin of the doctrine of confidentiality is found in Prince Alber v Strange, (1849) 01 HAT 01.
It has been clearly laid down that the mere fact that a document is private or is confidential does not necessarily produce the result that its production can be withheld.
In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.
In Duncan v Cammell Laird & Co. Ltd [1942] UKHL 3; (1942) 1 AER 587, Viscount Simon LC said;
"It is not a sufficient ground that the documents are "state documents" or "official" or are marked "confidential". It would not be a good ground that, if they were produced, the consequences might involve the department or the government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for compensation.
(Emphasis Added)
In "Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd", (1916) 1 K.B. 822, Swinfen-Eldy, L.J. observed;
"The foundation of the rule is that the information cannot be disclosed without injury to the public interests, and not that the documents are confidential or official which alone is no reason for their non-production: the general public interest is paramount to the interests of the suitor".
Applying the rule of law enunciated in Duncan v Cammell (supra) and Asiatic Petroleum Co. Ltd. v Anglo-Persian Oil Co. Ltd, (supra), I venture to say beyond per-adventure that the doctrine of confidentiality has no application even by any stretch of imagination to the instant case.
I interpose to mention that the proposition advanced by the Permanent Secretary demonstrates a clear misconception on his part as to the scope and width of doctrine of "confidentiality".
As earlier mentioned in paragraph (02), the disclosure and production of the "root cause analysis" report is necessary for fairly disposing of the instant case. Applying the principles of Duncan v Cammell & Co (supra) and Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd (supra) to the instant case, it is clear beyond question that the confidential documents are not privileged from inspection and production. The law has never accorded privilege against discovery and inspection to confidential documents which are necessary for fairly disposing of the case.
It is apt to note in the instant case that the crown is a party to the litigation. The Plaintiff has sued the crown for negligence. In light of the rule of law enunciated in the case of Duncan v Cammell & Co (supra) and Asiatic Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd, (supra) it seems to me perfectly plain that the Permanent Secretary cannot defend his interest against the Plaintiff's claim by invoking the doctrine of public interest immunity.
I am of course mindful of the fact that the Courts have a discretion to order discoveries. It is worth remarking that it would, however a wrongful exercise of discretion making an order refusing a document for inspection and discovery because of the court's natural aversion to disclosure of confidential documents notwithstanding that the proceedings might not be fairly disposed of.
I must confess that I am unaware of any case where the courts have recognized that there are circumstances in which the confidentiality of documents should be so respected that their production should be refused even if by doing so the proceedings might not be fairly disposed of.
In United States v Nixon [1974] USSC 159; (1974) 418 US 683, the Supreme Court refused, in the absence of a need to protect military, diplomatic or sensitive national security secrets, to accept the argument that the very important interest in confidentiality of presidential communications is significantly dismissed by the production of such material for in camera inspection and went in to hold that this interest must give way to the superior public interest requiring that justice be done in cases.
(7) Let me turn to the doctrine of public interest.
The Permanent Secretary says that the disclosure of the report would be contrary to public policy and prejudicial to the Ministry.
There are two aspects of the public interest which pull in contrary directions. It is in the public interest that full effect should be given to the normal rights of a litigant. It is in the public interest that in the determination of disputes the courts should have all relevant material before them. It is, on the other hand, in the public interest that material should be withheld if, by its production and disclosure, the safety or the well being of the community would be adversely affected. There will be situations in which a decision ought to be made whether the harm that may result from the production of documents will be greater than the harm that may result from their non-production. [Per Lord Morris, Conway v Rimmer, (1968) AC 940)
A cursory glance at the Affidavit in Opposition reveals that the Permanent Secretary merely says that the production of the document is contrary to public policy and prejudicial to the Ministry.
For my part, I am constrained to say that the opinion of the Permanent Secretary does not really give assistance to the Defendants in view of the fact that the Permanent Secretary does not say that he has himself perused the report.
The opinion formed by the Permanent Secretary in relation to the contents of the root cause analysis report is very doubtful. Because he does not depose in his affidavit in opposition that he read and examined the document. How did he make up his mind that the report should not be produced on the ground of public interest without reading the contents of the report???
Strictly speaking, the number of documents the disclosure of which would involve danger to the State, State Departments, Ministries and public interest are relatively small. Certain documents are treated as immune from disclosure by their very nature. For example where disclosure would be injurious to the national defense or to good diplomatic relations (such as cabinet papers)
It is clear beyond question that the root cause analysis report in the present case does not on the face of it belong to a class the disclosure of which would prejudice the public interest or involve danger to the State, State Departments or Ministries.
The disclosure will not affect military, diplomatic or sensitive departmental secrets. The report in question does not relate to military diplomatic or sensitive national secrets.
(8) Finally, addressing myself to the question, "is there a statutory bar on the disclosure of the "root cause analysis" report, I would answer that, upon the face of it, "No".
The Permanent Secretary does not say in his affidavit in opposition that he is not permitted by statute law to disclose the root cause analysis report.
Therefore, in the absence of any express or implied statutory prohibition, it seems to me that in the special circumstances of this case, the interest of justice warrants the court in making an order for disclosure of the report in question.
(9) Before I take leave of the matter, I ought to mention one thing.
The crown is a party to the litigation. The Plaintiff has sued the crown for negligence. In the context of the present case, I am inclined to lean in favour of the more liberal judicial thinking reflected in the dictum of Lord Kilmuir L.C in Conway v Rimmer, (1968) A.C. 911.
Lordship Kilmuir said;
"A very large part of present-day Crown litigation consists of actions arising out of road accidents and other accidents involving government employees, and accidents on government premises. When such an action is brought against a government department, the most relevant documents are the reports of the employees involved ...... and also subsequent reports made by the foreman, superintendent or other official... In our opinion Crown privilege ought not be claimed for these documents, and we propose not to do so in future......
Where, however, the Crown or the doctor employed by the Crown is being sued for negligence, we propose that privilege should not be claimed."
(Emphasis Added)
(10) On the strength of the authority in the above case, I certainly agree with the sentiments which are expressed inferentially in the Plaintiff's submission. I must confess that I am not in the least impressed by the objections of the Permanent Secretary of Ministry of Health. I disallow the objections.
(H) CONCLUDING REMARKS
(1) Having had the benefit of written and oral submissions for which I am most grateful and after having perused the affidavits and the pleadings, doing the best that I can on the material that is available to me, I have no doubt and I am clearly of the opinion that the public interest in the administration of justice outweighs any public interest in withholding the "root cause analysis" report and that the public interest does not render it necessary that the "root cause analysis" report should be withheld from disclosure and production. The full and proper discovery of documents is an imperative part of any civilized legal system. Without it, a party is disadvantaged to a fatal extent and the overall administration of justice suffers accordingly.
(2) I see no ground in law to extend the umbrella of non-disclosure or non-production to the documents fall under policy and procedures of Ministry of Health. I interpose to state that the policy and procedure of the Ministry of Health should not be used as a formula for obtaining expansive blanket immunity for all Health Ministry reports and documents. It is essential to bear in mind that the public interest in the fair and effective administration of justice is not an "empty slogan." The Courts in Sankey v Whitlam [1978] HCA 43; (1978) 21 A.L.R. 505, Duncan v Camell Laird [1942] UKHL 3; (1942) A.C. 624 and Conway v Rimmer [1968] UKHL 2; (1968) A.C. 910, clearly held that the doctrine of Public interest immunity should not be applied simply to protect public officials from criticism or inconvenience.
(3) I really cannot conceive it to be realistic to accept that the public interest requires that all reports and state papers should be kept secret for ever or until they are only of "historic interest."
(4) Having said that, I wish to emphasize that the "root cause analysis" report should not be withheld and it should be produced to serve the ends of justice. It is against the public interest to withhold the root causes analysis report, then allowing the matter to be swept under the Health Ministry's carpet. It is essential to bear in mind that the public policy immunity is not a trump vouchsafed to certain privileged players to play when and as they wish.
(5) Finally, I cannot resist in saying that the proposition advanced by the Permanent Secretary of Ministry of Health and Medical Services is a far cry from obvious and natural limitations to the scope and width of the doctrine of Public interest immunity and confidentiality of documents and it flies on the face of the rule of law enunciated by Lord Kilmur L.C. in Conway v Rimmer (supra) and Viscount Simen L.C. in Duncan v Cammell (supra).
(6) I could see nothing to change my view even on the basis of exhaustive work contained in Pearce, "The Courts and Government Information" (1976) 50 ALJ.
(I) FINAL ORDERS
(1) Objections overruled.
(2) I order the Defendants to disclose to the Plaintiff the "root cause analysis report" mentioned in the letter of the Acting Medical Superintendent, Lautoka Hospital, dated 28th April 2014.
(3) The Defendants are ordered to pay costs of $1000.00 (summarily assessed) to the Plaintiff which is to be paid within 14 days from the date hereof.
.......................................
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
02nd October 2015
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